ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Monday, May 30, 2011

Not An Anomaly

As the present comings and goings in Case 003 -- and potentially Case 004 -- cannot by any means be described as an anomaly in the Cambodian judicial process, a fair -- and to the best of my knowledge accurate -- treatment of the ordinary Cambodian courts is offered in the following fairly recent title:

Saturday, May 28, 2011

What Would the UN Do?

At the outset of the dispute over Case 003 – and by extension Case 004 – allegations were made that the ECCC-dedicated personnel of the United Nations Headquarters may have made a deal with the Cambodian government to make Case 002 the last case of the ECCC and put the kaibosh on the rest.

The article below quotes the UN HQ as stating that it had nothing to do with the alleged design (provided there is a design in place). While there appears to be no reason to believe that the UN HQ is not telling the truth, it would be difficult to imagine that the UN HQ would have admitted to a behind-the-scenes deal like this for fear of accusations of interference with the administration of justice (which has all sorts of implications for fair trials and most important for the reputation of the UN as a promoter of the rule of law).

Whatever is the verity of the UN HQ statement, a seasoned observer would not help but notice that administrators have attempted to put this court on a well-defined schedule before (often to the amusement of the substantive people): prior to and at the beginning of the process the administrators authoritatively stated that the process would go on for 3 years and not a day longer. This was declared from the highest rostrums of this tribunal. Look how that worked out with the tribunal being in the 6th year of its operation (many have tried to play a numbers game here but there isn’t one to be played – the ECCC started spending money in February 2006 and there just isn’t two ways about it) and counting.

On the other hand, there are two issues the UN needs to reckon with: (1) the UN no longer has sovereignty over Cambodia (that ended in 1993) and the Cambodian government clearly does not want Cases 003 and 004 to go ahead (the Prime Minister made a statement to this effect which to my knowledge was never retracted) and (3) the judicial independence regarding the length of international proceedings isn’t the same thing as judicial independence regarding domestic proceedings (there is a tremendous cost to the international ones, particularly by comparison: an ordinary Cambodian judge makes $500 a month and his/her ECCC national counterpart pulls in $5,000 +; plus, Cambodia has no government-funded legal aid system which means the government pays zero for lawyers in ordinary proceedings like the ECCC has expended millions on the same).

Now, considering the above, what is the UN HQ to do to extricate itself from this conundrum in the environment where the Cambodian government wants these proceedings closed, the donors are reluctant to continue footing the spiraling bill of the Court and “the most responsible” clause of the personal jurisdiction of the Court being elastic enough to allow prosecutions till the end of the natural life of the persons involved in Democratic Kampuchea? It is to make a deal and shut down the process after the largest case (Case 002) is over. Can the existence of this deal – or understanding -- be revealed to the public? No, for obvious reasons as none of the above will satisfy the ardent observers of the Court. The UN HQ did the only thing it could do: it made a statement disassociating itself from the dispute over Cases 003 and 004 and shifted the heat back on to the Co-Investigating Judges. The UN can’t legally shut down the proceedings or make a legal deal to this effect but the CIJs can.

Friday, May 27, 2011

UN Denies Interfering in Cambodian War Crimes Tribunal Cases

Phnom Penh - The United Nations Friday rejected allegations it had interfered with investigations at the UN-backed war crimes tribunal in Cambodia or put any pressure on the investigating judges.

The allegations come amid fears the tribunal is looking to shut down two cases - known as Case Three and Case Four - in the face of government opposition. Prime Minister Hun Sen has long said he would not permit either case to go to trial, citing a risk of civil war.

Late last month the investigating judges closed Case Three, but within days international prosecutor Andrew Cayley criticized the investigation as deficient.

Cayley said the judges had failed even to question the suspects in Case Three, did not investigate numerous crime sites and did not interview a number of witnesses.

On Wednesday the president of the Cambodian Center of Human Rights, Ou Virak, questioned the work of the investigating judges, claiming the actions of the UN's judge, Siegfried Blunk, 'raise the question of whether the United Nations has conceded to the demands of the (Cambodian government) and is now acting to prevent any further cases from going to trial.'

In emailed comments Friday, UN spokesman Martin Nesirky said that was not the case.

'Neither the secretary-general nor the United Nations Secretariat plays any role in the independent judicial process before the ECCC [Extraordinary Chambers in the Courts of Cambodia, the tribunal's official name],' Nesirky said.

'And I can confirm, in response to your question, that no instructions have been issued by any United Nations officials to any judge or other official at the (tribunal) to prevent Cases 003 and 004 moving forward as part of this independent judicial process,' he said.

Cases Three and Four involve five former Khmer Rouge who are thought responsible for tens of thousands of deaths during the movement's rule of Cambodia between 1975 and 1979.

The court's second case, against four senior surviving leaders of the movement, is scheduled to begin June 27.

In its first case, the tribunal last year convicted the Khmer Rouge's head of security, Comrade Duch, of war crimes and crimes against humanity.

Case Four is still with the investigating judges' office, which is led jointly by Blunk and Cambodian judge You Bunleng.

More than 2 million people are thought to have died during the Khmer Rouge's rule.

Game of Chicken Update: the Laurels of Victory

About a week ago the CIJs ordered the International Co-Prosecutor to retract his statement regarding the additional work the International CP felt the CIJs needed to do in Case 003. The CIJs gave the International CP 3 days to retract his statement. No retraction followed. It is clear that the International CP is standing his ground (whatever the legal basis and ethical bases for this ground might be). There are only two ways for the game of chicken to end: either one of the parties swerves or a head-on collision (which more often than not has disastereous consequences) occurs. As the International CP presses on unflinchingly, an unsaid deadline gets imposed on the CIJs to either get off the road (and give the International CP the laurels of victory) or let us know they are still on the road.

Are the CIJs Feeling Beleaguered?

The CIJs recently lashed out at a magazine article critical of their work and to a certain degree of the Court as a whole.

Naturally, what begs a question is what the judicial officers of the ECCC are doing counter-attacking the media. Besides it being undignified and unworthy of the office they hold, it is extremely unlikely that their job descriptions contain media interaction. Their job descriptions is what we, the taxpayers of the countries which fund the UN and this court, are paying them for; if media interaction and participation in the public debate of their performance was intended to be part of their mandate, it would have been incorporated in their respective terms of references.

Another question this statement begs is whether it was used as an opportunity to retaliate against the Nazi cartoons (discussed earlier on this forum) which were off-color but which should not have merited the attention and official response of persons whom we expect to be esteemed judicial officers.

Lastly, the CIJs' insecurity about their decision to terminate Case 003 is understandable: they can't tell us a good story about why it happened; while it is well-appreciated that the CIJs are not required by law to explain their decisions to terminate cases to the public, they might be feeling -- and many of us do too -- that they are duty-bound to do so.

As a postscript to this, the International Justice Tribune's article revealed that all persons interviewed for it knew the identities of the suspects in Cases 003 and 004 (and knew them long enough to have been able to make their personal conclusions about these persons' suitability for prosecution); hence is the question for the International Co-Prosecutor and the CIJs: don't the Internal Rules say something about the secrecy of investigations? what happened and why doesn't anyone seem to be concerned about this?

International Justice Tribune's Cambodia's Troubled Tribunal

Cambodia’s troubled tribunal has suffered further setbacks in recent weeks as a series of public disputes pitted officials against one another. The spats escalated quickly and dramatically with co-prosecutors issuing opposing statements and investigative judges reportedly threatening the international co-prosecutor with contempt of court.

By Jared Ferrie, Phnom Penh

The disagreements involve a prospective case that the government strongly opposes even though rosecutors say they have sufficient evidence to charge a further five former Khmer Rouge officials. Critics accuse the court’s investigative section of bowing to political pressure by failing to carry out proper investigations, thereby increasing the likelihood that the case will be dropped.

Theary Seng, an activist and founder of the Centre for Justice and Reconciliation, said infighting and political interference could prevent the court from fulfilling its mandate. She called for intervention by international donors and UN headquarters to “salvage” the UN-backed court.

“At this pace, the tribunal is heading for an irreparable crash,” said Seng, whose parents were killed by the Khmer Rouge.

Ou Virak, president of the Cambodian Centre for Human Rights (CCHR), said the tribunal is in danger of collapse even before trying four top Khmer Rouge leaders whose case (002) is scheduled to begin June 27.
“I think the court may struggle even to complete Case 002,” he said. “Even if it does, the nature of the ‘justice’ it seeks to dispense has been entirely and irreparably undermined.”

The current crisis began with a seemingly innocuous one-sentence statement issued April 29 by the co-investigating judges, which simply said they had “concluded the investigations in Case 003”. But the timing of the statement – released on a Friday evening when journalists are rushing to meet deadlines – along with its lack of detail raised alarm bells among observers.

High-ranking Cambodian government officials have repeatedly stated their opposition to expanding the scope of prosecution beyond the four persons already facing charges and one who has been convicted. Prime Minister Hun Sen even told visiting UN Secretary General Ban Ki-moon that he would not allow more cases to go forward.

Critics noted that investigators did not interview the suspects during 20 months of investigation into Case 003, involving several unknown suspects. Nor did they visit alleged crime sites. Some interpreted these facts, along with the secrecy surrounding the case, as signs of an internal decision to scuttle the case.

On May 9, International Co-prosecutor Andrew Cayley issued a detailed statement containing previously unreleased information, saying he was requesting further investigations, including interviews with witnesses and suspects, as well as visits to crime scenes that may contain mass graves. He reiterated his belief that the five suspects fall within the court’s jurisdiction.

Cayley’s statement was followed the next day by one issued by his national counterpart, Chea Leang. She echoed the government’s position that the court should cease its work at the conclusion of case 002. She said the suspects in case 003 could not be considered senior leaders or those most responsible for crimes committed under the Khmer Rouge.

Many experts disagreed. The Open Society Justice Initiative called for further investigations, and noted: “Case 003 is believed to involve Sou Met, the former commander of the Khmer Rouge air force, and Meas Mut, the commander of the navy.”

Seng said it was “laughable” not to consider such high-ranking Khmer Rouge officers to be senior leaders. Ou, of CCHR, also said they should be considered as such.

“I think they were important figures about which a good deal of evidence has been assembled,” said David Chandler, a leading Khmer Rouge historian.

In the face of widespread support for Cayley, International Co-investigating Judge Siegfried Blunk lashed out at the international co-prosecutor. On May 13, The Phnom Penh Post quoted a court source claiming that Blunk was considering initiating contempt of court proceedings against Cayley.

Blunk has not denied that claim. Instead, his office announced on May 18 that it had issued an order for Cayley to retract parts of his statement within three working days.

At the moment, the court’s future hangs in the balance, which as Chandler pointed out, “is a state of affairs pleasing to those in power in Phnom Penh.”

Co-Investigating Judges Inveigh Against a Magazine Article

In view of misrepresentations in the article “Cambodia’s troubled tribunal” published in the 25

May 2011 edition by the International Justice Tribune, the Co-Investigating Judges of the

ECCC point out the following:

1. Regarding the allegation “investigating judges (are) threatening the international co-prosecutor with contempt of court”:

The Co-Investigating Judges never threatened this, nor did they ever let it be known that they were considering this; rather this is a malicious rumour intended to disrupt the harmony within the Court.

2. Regarding the reported statement “at this pace, the tribunal is heading for an irreparable crash”:

As the Supreme Court has held hearings on appeals in Case 001, and as the Trial Chamber scheduledinitial hearings in Case 002 for 27-30 June 2011, furthermore as the Pre Trial Chamber is successfully dealing with the caseload of more than 1,700 individual appeals, and as the Office of Co-Investigating Judges and the Office of the Co-Prosecutors are working normally (despite certain disagreements), the assertion that the tribunal is heading for a crash is baseless.

3. The reported statements “the tribunal is in danger of collapse” and “the court’s future hangs in the balance” are therefore nonsensical and do not correspond with reality.

The Co-Investigating Judges have worked independently from outside interference, will continue to resist all such attempts, and are resolved to defend their independence against outside interference,

Monday, May 23, 2011

Let the Game of Chicken Begin

As the Co-Investigating Judges ordered (by placing 'ORDER' in upper caps for pith) the International Co-Prosecutor to retract his statement regarding Case 003 within 3 working days of the issuance of the CIJs' response to this statement; no matter how the day count is done the deadline for the International CP to comply is today, Tuesday, May 24, 2011. Will the International CP back down or will the standoff continue? If it does continue and considered the confrontation between the International CP and the CIJs has entered uncharted waters, what punitive action can the CIJs take if the International CP refuses to comply?

In the frenzy of this confrontation, I believe everyone has all but forgotten about the other half of the ECCC prosecution team, the National CP. As the National CP clearly stated from the outset that she would not participate in the initiation of Cases 003 and 004 and provided one or both of these cases are given a go-ahead by the CIJs (it is not looking this way now but anything is possible), what will the role of the National CP be in their regard? Will she sit these ones out?

Statement of the International Co-Prosecutor regarding Case File 003

The International Co-Prosecutor, Andrew Cayley, makes this public statement pursuant to ECCC Internal Rule 54, to ensure that the public is duly informed about ongoing ECCC proceedings, and in particular with regard to the International Co-Prosecutor’s Introductory Submission in Case File 003. In providing this information the interests of victims and witnesses, the rights of suspects, and the requirements of the investigation have been taken into account, as required under the Rules.

Following directions given by the Pre-Trial Chamber, on 7 September 2009, the International Co-Prosecutor submitted to the Co-Investigating Judges two Introductory Submissions opening judicial investigations into various crimes in Cases 003 and 004. These submissions named a total of five (5) suspects who the Co-Prosecutor believes are responsible for the alleged crimes and fall within the jurisdiction of the ECCC. Under the ECCC Internal Rules, the Co-Investigating Judges are required to investigate the criminal allegations contained in these submissions.

The Case 003 Introductory Submission addresses alleged crimes of murder, extermination, torture, unlawful imprisonment, enslavement, persecution and other inhumane acts. If proven, these acts would constitute crimes against humanity, grave breaches of the Geneva Conventions and violations of the 1956 Cambodian Penal Code.

Crimes required to be judicially investigated as part of Case 003 took place at several crime sites and criminal episodes covered by Case 002, including the S-21 Security Centre, the Kampong Chhnang Airport Construction Site, purges of the East, Central and New North Zones, and incursions into Vietnam, as well as the following new crime sites and criminal episodes:

(1) S-22 Security Centre in the Phnom Penh area;

(2) Wat Eng Tea Nhien Security Centre in Kampong Som Province;

(3) Stung Hav Rock Quarry forced labour site in Kampong Som Province;

(4) Capture of foreign nationals off the coast of Cambodia and their unlawful imprisonment, transfer to S-21 or murder; and

(5) Security centres operated in Rattanakiri Province.

On 29 April 2011, the Office of the Co-Prosecutors received notification that the Co-Investigating Judges considered the investigation in Case 003 to be concluded. Having carefully reviewed the Case File, the International Co-Prosecutor intends to request further investigative actions regarding the alleged crimes, within the 15 day period specified in ECCC Internal Rule 66 (1). Among other things, the International Co-Prosecutor will request the Co-Investigating Judges to:

1. Summon and question the suspects named in the Case File 003 Introductory Submission, and notify them that they are under investigation;

2. Interview additional individuals who have been identified as potential witnesses thus far;

4. Examine further the crime sites (including by searching for mass grave locations);

5. Place additional evidence on the Case File, including by transferring further evidence from Case File 002 to Case File 003; and

6. Further investigate the involvement of the Case 003 suspects in the crimes, including the transfer of prisoners under their control to S-21, their receipt of “confessions” taken from prisoners murdered at S-21, and their involvement in further arrests.

The International Co-Prosecutor will request these actions as he is of the view that the crimes alleged in the Introductory Submission have not been fully investigated. He has a legal obligation under the Internal Rules and the Law of the ECCC to identify and request all reasonable investigative actions which should be taken by the Co-Investigating Judges before a decision is made as to the whether or not any individuals should be indicted and sent for trial.

Notification to Potential Civil Parties in Case File 003

Pursuant to Internal Rule 23bis, individuals who wish to apply to become Civil Parties in Case File 003 must submit applications no later than 15 days from the date on which the Co-Investigating Judges notified the Co-Prosecutors that they consider the investigation to be concluded. Applying the relevant legal provisions, the International Co-Prosecutor is of the view that the deadline for Civil Party applications now falls on Wednesday, 18 May 2011 at 4 pm.

Considering that the crime sites under investigation have not previously been made public, the International Co-Prosecutor will request the Co-Investigating Judges to extend the deadline for a further six weeks in order to allow reasonable time for victims to submit Civil Party applications. However, at present, the only guarantee that a Civil Party application will be considered by the Co-Investigating Judges is by having it filed by 18 May 2011 at 4.00pm. In the event that the Co-Investigating Judges extend the deadline the public will be notified.

Under Internal Rule 23bis (1) and Article 3.2 of the Practice Direction on Victim Participation, a victim is defined as a natural person or legal entity that has suffered physical, material or psychological injury as a direct consequence of at least one of the alleged crimes.

Victims wishing to apply should contact the ECCC Victims Support Section, fill out and file a Victim Information Form this week. The office is open Monday to Friday except on public holidays. The address is:

Victims Support Section, Extraordinary Chambers in the Courts of Cambodia

Noting the Press Release, Statement by the International Co-Prosecutor Regarding Case File 003 dated 03rd May 2011 (the "Public Statement") on the ECCC website

I - PROCEDURAL HISTORY

1. The Public Statement contained among other things (A) information about crimes that according to the opinion of the International Co-Prosecutor required to be judicially investigated, thereby mentioning in detail as part of Case 003 alleged crimes, crime bases and criminal scenarios; (8) the contents of his intended request pursuant to Rule 66.1 for further investigative actions.

2. Regarding item (A), the International Co-Prosecutor stated that "crimes required to be judicially investigated as part of Case 003 took place at several crime sites and criminal episodes covered by Case 002, including the S-21 Security Centre, Kampong Chhang Airport Construction Site, purges of the East, Central and New North Zones, and incursions into Vietnam, as well as the following new crime sites and criminal episodes:

3. Regarding item (8), the International Co-Prosecutor made public his intended request for investigative actions pursuant to Rule 66.1 by stating that "Having carefully reviewed the Case File, the International Co-Prosecutor intends to request further investigative actions regarding the alleged crimes, within the 15 day period specified in ECCC Internal Rule 66 (1). Among other things, the International Co-Prosecutor will request the Co-Investigating Judges to:

1. Summon and question the suspects named in the Case File 003 Introductory Submission, and notify them that they are under investigation;

2. Interview additional individuals who have been identified as potential witnesses thus far;

3. Examine further the crime sites (including by searching for mass grave locations);

4. Place additional evidence on the Case File, including by transferring further evidence from Case File 002 to Case File 003; and

5. Further investigate the involvement of the Case 003 suspects in the crimes, including the transfer of prisoners under their control to S-21, their receipt of "confessions" taken from prisoners murdered at S-21, and their involvement in further arrests. "

II - REASONS FOR THE DECISION

Item A of the Public Statement

4. Rule 54 provides: "Introductory, Supplementary and Final Submissions filed by the Co-Prosecutors shall be confidential documents. However, mindful of the need to ensure that the public is duly informed of ongoing ECCC proceedings, the Co-Prosecutors may provide the public with an objective summary of the information contained in such submissions, taking into account the rights of the defence and the interests of Victims, witnesses and any other persons mentioned therein, and the requirements

of the investigation". Pursuant to this Rule, the International Co-Prosecutor was only entitled to

give a summary of his Case 003 Submission, and not to express publicly his opinion about "crimes required to be judicially investigated", which by definition (Rule 55.1) are investigations by the Co-Investigating Judges.

5. Rule 54 further provides "In addition, the Co-Prosecutors may jointly, either personally or through the Public Affairs Section, correct any false or misleading information, provided that the case is still under preliminary investigation".

However, the preliminary investigation (Rule 50) had ended with the sending of the Introductory Submission to the Co-Investigating Judges pursuant to Rule 53.1 on 7 September 2009.

6. In sum, the International Co~Prosecutor had no legal basis for issuing Item A of the Public Statement.

Item B of the Public Statement.

7. Rule 56 states: "In order to preserve the rights and interest of the parties, judicial investigation shall not be conducted in public. All persons participating in the judicial investigation shall maintain confidentiality". However, the International Co-Prosecutor by informing the public in advance and in detail about what according to Rule 66.1 "he will request the Co-Investigating Judges to" do, has violated the Rule of Confidentiality.

8. Because of the lack of legality for Item (A), and the breach of the confidentiality by Item (B) the International Co-Prosecutor has to publish a retraction of the Public Statement, which is to be effected in the same form as the issuance of the statement, and which, to restore public confidence in the legality and confidentiality of the investigations, has to be accomplished in a short period of time.

111- DECISION

9. For these reasons, the Co-Investigating Judges ORDER the International Co-Prosecutor to publish a retraction of items (A) and (B) of the Public Statement on the ECCC website within three (3) working days from the date of filing.

Sunday, May 8, 2011

CIJs Blunk and You in Nazi Uniforms and Other Responses to the CIJs Purported Decision to Discontinue with Cases 003 and 004

Following the Co-Investigating Judges’ (CIJs) statement on April 29, 2011 that investigations in Case 003 and 004 were concluded it was presumed that the CIJs found no merit in the charges laid by the prosecution a year and a half ago. Under normal circumstances this situation would have been business as usual and would not have riled up as many observers as it did. However, these were not the normal circumstances. To set the stage for what happened it will help to recall Prime Minister Hun Sen’s statement about a year and a half ago that, in his opinion (which in the context of the Cambodian de facto autocracy is the opinion of the State), the prosecution of the initial 5 suspects in Cases 001 and 002 was sufficient to accomplish what the ECCC set out to do. As the Cambodian Prime Minister’s opinions are not mere statements of private nature but a matter of government policy, the National Co-Prosecutor of the ECCC immediately bowed out of Case 003 and 004. But not the International Co-Prosecutor who put together Introductory Submissions and filed them unilaterally. After a year and a half of PTC and CIJ posturing, the CIJs, reportedly (it is impossible to determine what specifically they meant to say from their short public statement), found no merit in pursuing Cases 003 and 004.

I have no reason to believe that the Cambodian populace cared one way or the other about the CIJs’ statement but long-term observers of the ECCC with a stake in the continued proceedings had a violent reaction to it.

One such observer, James Goldston of a New York-based NGO, the Open Society Justice Initiative (OSJI), whose organization has attempted to influence the ECCC process since before the establishment of the ECCC called the statement and the overall position of the Cambodian government regarding Cases 003 and 004 “the fix”. Mr. Goldston’s attempt to portray this policy as sinister is somewhat misplaced and his ‘righteous ire’ is out of sync which his organization’s previously taken positions. He argues that it will “implicate the court in a political decision to halt proceedings” if the CIJs find that the defendants in Cases 003 and 004 do not meet the standard of ‘most responsible’ of the law which established the ECCC. It is true that the vagueness of the ‘most responsible’ category of the ECCC’s personal jurisdiction might be used by those who want to discontinue with 003 and 004. But, where was Mr. Goldston and his organization when the Court stretched the definition of ‘most responsible’ to prosecute Duch (whose counsel kept asking the Trial Chamber throughout the trial why his client was singled out for prosecution)? Or was this simply a stretching of the legal categories OSJI found acceptable and Mr. Goldston’s current opprobrium is not a matter of legal principle but merely that of his disagreement with what appears to be the Cambodian government’s prosecution policy? Mr. Goldston equally does not tell us specifically what in the design of the Court warrants 003 and 004. Nor does he mention that if prosecuted, 003 and 004 will open the door to 005 and 006 and so on and so forth until everyone who had some rank of authority under the Khmer Rouge is prosecuted. The extent to which prosecutors are independent from the political branch’s prosecution policy under Cambodian law (we all know what happens in practice) remains an interesting question, however, and as such should be studied.

While Mr. Goldston’s opinion piece is written in decorous professional language, this cannot be said about the spitfire style of journalism of KI Media and Theary Seng (who re-printed KI Media’s materials in a number of cases). The journalists of KI Media decided to express their ire at the CIJs’ statement by attacking the International CIJ’s, Mr. Siegfried Blunk, nationality. It is not difficult to imagine how any mention of Germany at crimes against humanity proceedings conjures up the images of German atrocities during WW2. It is, however, a low blow to be opposing a jurist’s position by likening him to the perpetrators of the worst and most institutionalized crimes in recorded history, even if he happens to be one of their descendants. While Germany as a nation deserves every bit of this notoriety, an individual jurist acting in his official capacity does not (http://www.thearyseng.com/columnist/32-theary-sengs-blog/294-legal-farce-at-eccc-toward-dismissing-case-003-ocij-press-release). While the First Amendment (the freedom of speech clause) in the US (what the Cambodian Constitution’s right to freedom of expression protects continues to remain a mystery) protects this type of speech, this only means that the US government is unable to limit this speech in any way. This does not mean that as a society we need to endorse or put up with this. Regardless of how anyone might personally feel about Germany or the Germans and regardless of the pith they believe they are going for by putting Mr. Blunk in a Nazi uniform in a cartoon (perhaps, if they knew a bit more of the history of the Third Reich, they would have expanded those to focus on Mr. Blunk’s place of origin and gotten creative with the similes there), the public debate does not stand to benefit from these freedom of speech-protected shenanigans. The public debate on this issue would, however, benefit from competently made statements of opposition. The vitriol promoted by KI Media and Theary Seng does nothing more than bring down this debate to the level of puerility.

The seriousness of the issue of the discontinuation with Cases 003 and 004 is that of significance, however. It raises important questions of the extent of permissible entanglement between the prosecutors and the politicians in Cambodia and the extent to which the phenomenon of ‘a prosecution policy’ is legal under Cambodian law (no one seemed to have had a problem with it when the Cambodian government adopted a prosecution policy on human trafficking offenders following a strong condemnation of the US Department of State). It also raises a question of whether those Cambodians who do not stand to benefit from the ECCC financially are interested in seeing the Chambers prosecute more offenders. It also raises a perennial question of the timeframe for the completion of this process. Lastly, it should put the quality of legislative drafting which went into the law which established the ECCC into question: the present situation is not something no reasonable legal expert could have predicted (in fact, this issue was raised prior to the inception of the ECCC) and as such should have been anticipated and provided for by the international drafters (it was not; which is part of the reason we are here today).

Saturday, May 7, 2011

No Justice in the Killing Fields

NEW YORK — More than 30 years after the murderous Khmer Rouge were driven from power in Cambodia, the U.N.-backed effort to bring justice to the victims of the killing fields stands on the brink of ignominious failure due to political interference from the Cambodian government and the indifference of the international community.

A hybrid court, the Extraordinary Chambers in the Courts of Cambodia, has spent over $200 million since it was set up in 2003 with both international and local judges and prosecutors. It has tried only one person: Kang Kech Eav, or Duch, the head of the notorious Tuol Sleng prison complex, who is appealing his conviction for crimes against humanity, murder and torture.

Now Cambodia’s Prime Minister Hun Sen has taken an axe to further proceedings. In power for over 25 years, Hun Sen has repeatedly and publicly declared that the court should try only one more case (case “002” in court parlance), against four detained senior ex-Khmer Rouge leaders, all of whom are in their late 70s or 80s.

As for five additional unnamed suspects, whom the court’s pre-trial chamber approved for investigation, Hun Sen bluntly informed U.N. Secretary General Ban Ki-moon late last year that they would not be “allowed” to go forward.

The reason offered is the supposed threat any additional trial would pose to peace in Cambodia. Others suspect that the prime minister is simply enforcing a pact he long ago cut within his ruling Cambodian People’s Party that none of its ex-Khmer Rouge members would ever be tried or otherwise exposed for crimes they committed, no matter how serious.

Other actors have their own reasons for acquiescing in this. Donors want to save money and are anxious for the court to wind up operations.

Having invested more than a decade in negotiations to launch the court and keep it alive, the United Nations finds it hard to walk away now. It is institutionally committed to the court, even though in 2002, then-secretary general Kofi Annan recommended against U.N. involvement in a tribunal which he rightly believed lacked adequate protections against precisely the kind of political interference that is blocking the additional cases.

Mr. Annan was compelled by pressure from the United States, Australia, France and Japan to accept the present flawed structure (the International Criminal Court is limited to prosecuting crimes that were committed after it was established in 2002).

Court officials are thus caught in a trap. The fearful Cambodian staff must respond to political pressures. Even international staffers feel constrained to focus their efforts on making the most of case 002, given the unlikelihood of any further trials.

As a result, the right course of action — allowing all cases currently before the judges to proceed through to completion — now seems unattainable. Advocates of impartial justice are faced, as they have been throughout the morally tainted history of this tribunal, with a choice of lesser evils.

One option under discussion would involve deception. According to various sources, court officials might “gracefully” dispose of the additional five suspects, for example, by presumptively finding that none of them are among those “most responsible” for Khmer Rouge crimes, as the governing statute requires. Such a move would implicate the court in a political decision to halt proceedings.

Unfortunately, this is where things seem to be headed. By their own awkward admission, the Cambodian and international judges responsible for investigating the additional cases have restricted their staff to desk review; no field investigation is underway. This month the deputy national co-prosecutor reaffirmed there would be no further prosecutions. The fix, it seems, is in.

A preferable, if still distasteful, alternative, would be to honestly horse-trade abandonment of the additional cases in exchange for a guarantee of total government cooperation, and full donor resources, for case 002.

The United Nations and the Cambodian authorities should openly declare that the hybrid court will cease operations after conclusion of case 002 due to government objections and the lack of continued funding. As part of the squalid bargain, the government should publicly commit itself to lifting its illegal veto of the pending witness summonses and comply swiftly with any other court order or request.

Even with these conditions fulfilled, victims of the Khmer Rouge will be cheated of the more comprehensive accountability further trials would have produced. And every Cambodian will know that all the will the international community could muster was not sufficient to create a truly independent court. It’s time for the U.N. to end the charade. James A. Goldston is the executive director of the Open Society Justice Initiative. In 2007–2008 he was coordinator of prosecutions at the International Criminal Court.